health and human rights

Sharmila Murthy, JD, MPA, is a joint Fellow in the Human Land security and the challenges of Rights to Water and Sanitation realizing the human right to water Program at the Carr Center and sanitation in the slums of , for Human Rights Policy and in the Sustainability Science Program at the Mossavar- Rahmani Center for Business Sharmila L. Murthy and Government, both at Harvard Kennedy School of Government, Cambridge, MA, USA. Abstract Addressing the human right to water and sanitation in the slums of Mumbai, India Please address correspon- requires disentangling the provision of basic services from a more complicated set of dence to Sharmila L. Murthy, questions around land security and land ownership. Millions of slum-dwellers in Carr Center for Human Rights Mumbai lack adequate access to safe drinking water and sanitation, which places Policy, Harvard Kennedy them at risk for waterborne diseases. Many slums are located in hazardous areas such School of Government, 79 JFK as flood plains, increasing their susceptibility to climate change-related weather pat- Street, Cambridge, MA 02138, terns. Access to water and sanitation in slums generally hinges on whether a dwelling email: sharmila_murthy@hks. was created prior to January 1, 1995, because those constructed created prior to that harvard.edu. date have greater land security. Although the so-called “1995 cut-off rule” looms Copyright © 2012 Murthy. This large in Mumbai slum policy, a closer reading of the relevant laws and regulations is an open access article dis- suggests that access to water and sanitation could be expanded to slums created after tributed under the terms of the January 1, 1995. State and municipal governments already have the authority to Creative Commons Attribution expand access to water services; they just need to exercise their discretion. However, Non-Commercial License (http://creativecommons.org/ slums located on central government land are in a more difficult position. Central licenses/by-nc/3.0/), which government agencies in Mumbai have often refused to allow the state and municipal permits unrestricted non-com- governments to rehabilitate or improve access to services for slums located on their land. mercial use, distribution, and As a result, an argument could be made that by interfering with the efforts of sub- reproduction in any medium, provided the original author national actors to extend water and sanitation to services to slum-dwellers, the central and source are credited. is violating its obligations to respect the human right to water and sanitation under international and national jurisprudence.

Introduction Millions of slum-dwellers in Mumbai lack access to safe drinking water and sanitation, which negatively impacts their health and compromises their ability to lead lives full of dignity, as envisioned by the Universal Declaration of Human Rights. This paper seeks to contribute to the bur- geoning literature on slum policy and access to water and sanitation in Mumbai by examining in greater depth the legal basis of the so-called 1995 cut-off rule. A more nuanced reading of the underlying laws and regulations reveals that there may be potential political or legal avenues for extending basic water services to slums in Mumbai, thereby further- ing the realization of the human right to safe drinking water and sanita- tion for all.

The first section of this article examines how rapid urbanization in India has contributed to poor living conditions in the slums of Mumbai, which are often located in environmentally hazardous places, such as flood plains. The water supply in Mumbai is unequally distributed and biased

volume 14, no. 2 December 2012 health and human rights • 61 Murthy toward wealthier communities, who benefit from able water and sanitation services highlights the chal- piped infrastructure. In contrast, access to water and lenges of realizing the human right to water and sani- sanitation services in slums is generally poor and tation. The legal obligation under the International waterborne diseases are prevalent. Covenant on Economic, Social and Cultural Rights (ICESCR) is not to realize the recognized rights over- The lack of access to sufficient amounts of good night, but to ensure that maximum available resourc- quality, affordable water and sanitation services in es are being used to ensure their progressive realiza- many Mumbai slums stands in sharp contrast to the tion in a non-discriminatory way. Under international ideals of a human right to safe drinking water and law, states have an obligation to protect, respect, and sanitation for all. As discussed in the second sec- fulfill human rights. The analysis suggests that under tion of this article, the normative content of the human rights law, the central government of India human right to safe drinking water and sanitation, has not comported with its duty to respect because it as recognized by United Nations, entitles everyone prevents the state and municipal actors from provid- to sufficient, safe, acceptable, physically accessible, ing access to basic services. A narrowly framed argu- and affordable water and sanitation services for per- ment could also be made under Indian law that the sonal and domestic uses. The Indian Supreme Court central government’s conduct violates the right to life has also recognized the right to water and sanitation provision of India’s Constitution. under the “right to life” provision of its constitution. In short, the implementation of the human right to The third section of the paper attempts to reconcile water and sanitation in Mumbai requires disentan- the gap between human rights law and domestic gling the provision of basic services from a more policies that govern access to water and sanitation complicated set of questions around land security in Mumbai slums. It grapples with a complicated set and interpreting existing laws and regulations in a of planning laws and regulations, focusing on the way that is consistent with India’s human rights obli- municipal Water Charges Rule and the state’s Slum gations. Areas Act. Access to water in Mumbai slums gener- ally depends on whether the dwelling was construct- ed prior to January 1, 1995, even if the dwelling was Health and environmental impacts of not considered legal when first built. The evolution slums of slum policy in Mumbai is discussed in order to provide context for what is commonly known as the “1995 cut-off ” rule. Focusing on the “notification” Rapid urbanization provision of the Slum Areas Act, the article sug- gests that the state and municipal governments have Rapid urbanization and dense slum populations the legal discretion to expand access to slums that compound the challenges of providing access to safe fall outside of the 1995 cut-off rule. To reconcile water and sanitation services. South Asia has wit- domestic and human rights law, state and munici- nessed a rapid rise in urbanization, and approximately pal officials would need to exercise this authority. 35% of India’s population now lives in urban areas.1 However, this interpretation does not apply to slums More than half of the population of India’s largest located on central government property, where state city, Mumbai, which is located in the western state law is not applicable. The central government agen- of , resides in urban slums, even though cies that own this land generally refuse to allow the slums occupy only about 8.75% of the city’s land.2 local government to extend services to these commu- Of the approximately 12 million people in Mumbai, nities. As a result, “non-notified” slums located on more than 6 million live in slums, approximately 1 central government land are in the most vulnerable million live on the pavement, and another 2 million position with respect to water and sanitation access. live as tenants in rented places, many of which are old and dilapidated.3 Population density is very high in This section considers the slum policies of Mumbai the slums, averaging around 80,000 people per square from the perspective of international human rights kilometer, as compared to 20,000 people per square law and Indian constitutional jurisprudence. That mil- kilometer in Greater Mumbai.4 According to recent lions of Mumbai’s slum-dwellers do not have access estimates, the number of slum dwellings in Mumbai to adequate amounts of safe, acceptable, and afford- has grown 40% since 1995.5

62 • health and human rights volume 14, no. 2 December 2012 health and human rights

cantly higher than that paid for municipal networked Slums have increased in response to the lack of ade- water.17 quate housing and services.6 The rise in slums has led policymakers in many developing countries to The disposal of human waste is also a major health attempt to control rural-urban migration. In India, and environmental challenge. Although approximate- “[m]igration to cities was, and often still is, seen by ly 90% of wastewater in Mumbai is collected, the vast the political leadership and intelligentsia as a threat majority is untreated and discharged through ocean to the survival of cities. To invest in urban develop- outfalls or local waterways.18 Most slum-dwellers ment and to focus on housing for the urban poor rely on poorly maintained public toilets, which are appeared to them to be an invitation to fresh migra- often unhygienic and pose public health and environ- tion.”7 The people living in slums “have clearly not mental risks for the whole city. A 2001 study found found adequate jobs,” so the argument goes, “or they that 63% of Mumbai’s informal population relied would not be living in such conditions.”8 However, exclusively on public toilets, and the average ratio of most economists and urban scholars believe that persons per toilet seat was 81:1; some ratios were as urbanization leads to advantageous social and eco- high as 273:1.19 Moreover, lack of access to sewer nomic development.9 lines is linked to higher mortality rates and intestinal parasites.20 Yet, due to the challenges of constructing Environmental and health impacts sewer lines in slums, toilet blocks rely on aqua-privy systems or septic tanks that tend to clog or overfill Slums are, by nature, densely populated places with because they are not cleared often enough. Many high occupancy rates and poor public health condi- toilets are not connected to water lines, forcing com- tions. In Mumbai, slum-dwellers generally have lim- munities to rely on more expensive sources of water, ited access to water and sanitation services, which such as those brought in from tanker trucks. Many results in a high prevalence of waterborne diseases.10 toilet blocks do not have electricity, and therefore go According to the 2010 Millennium Development unused at night. As a result of the unhygienic condi- Goal statistics for India, 97% of all urban residents tions and long waiting times, which can be two hours have access to improved drinking water sources, but or more in some communities, many people resort only 30% have access to improved sanitation ser- to relieving themselves outside.21 Approximately 5% vices.11 However, these estimates are likely inflated of slum-dwellers in Mumbai defecate in the open.22 due to problems with the definition of “improved,” which does not account for the quality, safety, or Lack of access to water and sanitation disproportion- actual availability of services.12 Moreover, not all ately affects women, who often must wait until after slums have access to the same level of services. For they finish their household work to use the toilets, example, a recently published study of a Mumbai usually in the mid-morning.23 One study found that slum called Kaula Bandar found that only 0.1% of some women preferred to go outside rather than use residents have access to piped drinking water, only an unclean toilet; as a result, they waited until the 3% have access to a private (that is, non-shared) toi- cover of darkness and reduced the amount they eat let, and 14% practice open defecation.13 Because this and drink so as to minimize the need to go during slum is located on central government land and is not the day.24 “notified,” a term discussed below, its rates of access to water and sanitation are significantly worse than As unplanned housing created by the poor, urban those of slums captured in government statistics.14 In slums are often situated in hazardous locations, such Mumbai, the city is only able to meet approximately as on steep hills or river banks. In Mumbai, many are 65% of demand for water, but even this is unevenly located in flood-prone tidal flats, mangrove swamps, distributed and biased towards the rich.15 Within garbage hills, cemeteries, and under high-tension informal settlements, water access also varies con- power lines.25 Climate change is likely to exacerbate siderably, often reflecting business activities, which in the existing situation, with people living in coastal turn reflects ethnic territories.16 Moreover, due to the areas being more susceptible to extreme weather scarcity of available water in many slums, residents events such as tsunamis. The location of slums in often create informal networks of water distribution, low-lying areas that are susceptible to inundation but due to the challenges of obtaining and transport- makes it challenging to construct sanitation facilities ing the water, the cost paid for the water is signifi- that can contain waste effectively.26 When the land

volume 14, no. 2 December 2012 health and human rights • 63 Murthy is marshy and uninhabitable, the poor who settle dignity.”36 These resolutions followed Comment 15 on it often use their own funds to fill in the land to from 2002, in which the Committee that is charged make it habitable.27 However, that reclaimed land with interpreting the ICESCR determined that the then becomes vulnerable to claims by slum lords and right to water was inextricably related to the right to higher-end real estate development. health (Article 12) and the rights to an adequate stan- dard of living, adequate housing, and adequate food The conditions in slums place residents at risk for (Article 11). a host of diseases. Crowding can lead to respira- tory infections, meningitis, and asthma, and also In 1979, India acceded to the ICESCR, which requires promote the transmission of epidemic-prone infec- that states use maximum available resources to ensure tions like pertussis and group A Streptococcus pyogenes that all of the recognized rights are realized progres- infections, which are associated with rheumatic sively and that states uphold the principle of non-dis- heart disease.28 Poor water quality is a leading global crimination. India is also a signatory to other interna- cause of morbidity and mortality, and a key way of tional and regional instruments that recognize a right spreading infectious diseases like cholera and hepa- to water and sanitation, including the Convention titis. Residents in Mumbai’s slums regularly experi- on the Rights of the Child, the Convention on the ence outbreaks of diarrheal diseases, leptospirosis, Elimination of all forms of Discrimination against malaria, and dengue.29 Monsoons exacerbate and Women, and the Delhi Declaration. complicate the course of these diseases.30 For exam- ple, during the monsoons, , a large slum in India’s national jurisprudence also recognizes the Mumbai, has been known to flood with “waist-high right to water and sanitation. As a result of public water containing raw sewage from the open drains.”31 interest litigation, India’s Supreme Court has given Lack of access to safe water and sanitation also leads broad interpretation to the “right to life” provision in to higher rates of hepatitis A and E, which are usually Article 21 of its constitution, holding that it encom- spread through oral-fecal contact or the ingestion of passes various socioeconomic guarantees.37 For contaminated food or water.32 Skin diseases such as example, in a case brought by pavement dwellers who scabies are one of the leading morbidity causes for were being evicted, Ahmedabad Municipal Corporation children and often result from unhygienic conditions v. Nawab Khan Gulab Khan, the Supreme Court of and lack of personal hygiene.33 India held that the “[r]ight to live guaranteed in any civilised [sic] society implies the right to food, water, decent environment, education, medical care and Human right to safe drinking water shelter.”38 It emphasized that “the right to shelter and sanitation does not mean a mere right to a roof over one’s The lack of access to sufficient amounts of good head,” but includes “adequate living space, safe and quality affordable water and sanitation services in decent structure, clean and decent surroundings, suf- many Mumbai slums stands in sharp contrast to the ficient light, pure air and water, electricity, sanitation ideals of a human right to safe drinking water and and other civic amenities like roads etc.” Similarly, in sanitation, which entitles everyone to sufficient, safe, Subhash Kumar v. State of Bihar, the Supreme Court of acceptable, physically accessible, and affordable water India held that “the right to live is a fundamental right and sanitation services for personal and domestic under Article 21 of the constitution and it includes uses.34 In 2010, India was one of 122 countries that the right of enjoyment of pollution free water and air voted to adopt UN General Assembly resolution for full enjoyment of life.”39 10967, which “recognizes the right to safe and clean drinking water and sanitation as a human right that is Despite such broad judicial pronouncement on essential for the full enjoyment of life and all human human rights, scholars have observed that the actual rights.”35 Several months later, the Human Rights substance of the rights under India’s constitution is Council Resolution affirmed in a unanimous resolu- rather limited.40 Khosla describes the Indian judicial tion “that the human right to safe drinking water and approach as a “conditional social rights model,” where sanitation is derived from the right to an adequate the court “strives hard to emphasize the importance standard of living and inextricably related to the right of socioeconomic guarantees” but does not “protect to the highest attainable standard of physical and any systemic social right” and does not inquire into mental health, as well as the right to life and human the reasonableness of the policy or whether a mini-

64 • health and human rights volume 14, no. 2 December 2012 health and human rights

mum core of rights has been met.41 For example, in any other date separately notified by Government of the Ahmedabad case, the court allowed the evictions Maharashtra in this behalf ” (emphasis added). This is to proceed, but held that those who had squatted reiterated in Appendix E, which sets forth the “con- there for a considerable period of time could apply ditions governing water supply to slum areas.” As a for certain government schemes; if they did not result of this rule, access to water in Mumbai slums qualify, they did not have other recourse. More recent generally depends on whether the slum dwelling was pavement dwellers, however, were not entitled to any constructed prior to January 1, 1995, even if the remedy.42 Indian constitutional law has also reflected dwelling was not considered legal when first built.47 a tension between the housing rights of informal Some history of Mumbai slum redevelopment policy settlements and the right to a clean environment. is required to place this 1995 cut-off rule in context. For example, middle class civil society groups have brought actions to evict slum-dwellers from open 1995 cut-off rule and the evolution of slum spaces, such as the Sanjay Gandhi National Park in redevelopment policy in Mumbai Mumbai, on the grounds that they are polluting open spaces and damaging the ecology.43 Slum policy in Mumbai has evolved over the last half- century. In the first two decades after India gained This article considers the gap between international independence in 1947, the official policy towards human rights obligations, India’s own constitutional slums in Mumbai was to clear the hutments and pronouncements, and the policies governing access rehouse slum dwellers.48 This proved to be an inef- to municipal water in the slums of Mumbai. In the fective policy because people would simply rebuild case of the right to safe drinking water and sanita- their huts in the same, or nearby, locations. In the tion, the duty to provide access to these critical basic 1970s, slums began to be viewed as a possible hous- services comes into conflict with laws and regulations ing solution, and a variety of slum redevelopment in Mumbai that seek to discourage slum expansion. schemes were implemented over the decades.50 For As the UN Special Rapporteur on the Human Right example, the 1970 Slum Improvement Program to Safe Drinking Water and Sanitation has noted, sought to improve infrastructure, including water “[a]uthorities frequently resist allowing people with supply through community taps, community latrines, insecure tenure to connect to the water and sanita- roads, drainage, and street lights.51 In 1971, the tion networks because such connections can confer Maharashtra Slum Areas (Improvement, Clearance, legal rights over the land that they occupy, and thus and Redevelopment) Act (hereafter “Slum Areas be seen to encourage the development of informal Act”) was enacted in 1971 and has been amended settlements.”44 However, from a human rights per- several times to reflect changes in the law, including spective, water and sanitation should be provided the 1995 cut-off rule. regardless of underlying land tenure.45 Beginning in the mid-1980s, the state of Maharashtra Legal barriers to accessing water in began to support redevelopment strategy that relied more heavily on market-based mechanisms.52 The Mumbai slums goal was to redevelop slums by demolishing exist- This article focuses on the legal barriers that some ing buildings and building cross-subsidized housing slums face in obtaining municipal access to water, on the original site.53 The scheme sought to pro- addressing disparities between slums.46 vide private developers with incentives to develop slums by allotting them extra building space that can The relevant municipal regulation governing water be sold on the open market, which is supposed to access, including for sanitation, is the Municipal cross-subsidize the slum redevelopment.54 It exists in Corporation of Greater Mumbai Hydraulic Engineer’s a modified form today, and is codified in the Slum Office Water Charges Rules (effective from February Areas Act.55 A separate but related debate has also 1, 2001, and rates revised from August 1, 2002), which been taking place over the role of the private sector are promulgated pursuant to the Mumbai Municipal in the provision of basic services, such as water, in Corporation Act, 1888. Subsection 6.9 states that Mumbai.56 “stand post connections on meter measurements shall be given to residential structures in slum areas, Over the last few decades, slum policy in Mumbai which have come into existence prior to 1-1-1995 or has become increasingly dominated by the politics of

volume 14, no. 2 December 2012 health and human rights • 65 Murthy

“cut-off ” policies that promise free housing to slum- dwellers who have been residing in slums prior to a While the 1995 cut-off rule has meant increased particular date. Mumbai has historically used a date security of land tenure for slum-dwellers who meet cut-off in an effort to prevent “opportunistic influx,” the requirements, it has meant less security for those that is, movement into an area after a program is who do not. Between November 2004 and February announced in order to take advantage of benefits.57 2005, the government enforced the January 1, 1995 For example, in 1976, the state allotted certain vacant cut-off date by demolishing between 50,000 and land to slum dwellers while also conducting a slum 90,000 slum dwellings.65 The way that the demoli- census. It issued “photo passes,” which provided tions were carried out caused serious outcry and also greater security of tenure for those residents, but highlighted the inexact nature of cut-offs. Some of also created a date cut-off for taking up residence the residents whose homes were destroyed had lived in the slum.58 Because the number of residents kept in the slums prior to January 1, 1995. For example, proliferating, the government repeatedly extended scheduled caste members who had been resettled in a the eligibility, using electoral rolls instead of conduct- Mumbai slum known as Mankurd prior to 1995 had ing additional censuses.59 In general, cut-off rules their homes demolished because they did not possess 66 are politically motivated; candidates court the votes pre-1995 documents of proof. of slum-dwellers by promising to recognize existing slums while simultaneously trying to limit the creation Since the 1995 cut-off rule went into effect, there of new slums. While the cut-off policies increase the have been numerous efforts to expand the cut-off numbers of slums eligible for rehabilitation projects, date. The government agreed to later cut-off dates they also heighten the likelihood of demolition for for some special projects, such as the major rede- those that fall outside the cut-off date. velopment project for Mumbai’s largest slum, the Dharavi Redevelopment Project, which has a January 1, 2000 cut-off date.67 However, a 2006 Bombay High The current cut-off date of 1995 arose when the Court decision has prevented the state government -BJP government came to power on the from extending the cut-off date under the current promise of providing 800,000 free homes to 4 mil- legislation.68 The state government has since brought lion slum dwellers in Mumbai who had been on the a case before the Indian Supreme Court, which is electoral rolls as of January 1, 1995.60 However, this still pending. It would seem more straightforward promise has gone largely unfulfilled; an audit con- for the government to extend the cut-off date by ducted in 2010-2011 found that only 127,000 slum 61 amending the Slum Areas Act, but it is likely that dwellings had been rehabilitated. Nevertheless, the this would be politically difficult to accomplish. Slum Slum Areas Act was amended in 2002 to reflect the redevelopment policy is still a live issue in Mumbai 1995 cut-off date and it has important legal ramifica- politics, with proposals put forward to expand the tions. A new chapter of the Act entitled “Protected 1995 cut-off date that would not run afoul of the Occupiers, Their Relocation and Rehabilitation” current decision.69 At the end provides that all those residing in a slum prior to of 2011, the housing department was considering January 1, 1995 cannot be evicted if they are deter- another proposal that would do away with the cut- 62 mined to be on the electoral lists as of that date. If off by granting families living in structures built after it becomes necessary “in the larger public interest” January 1, 1995 eligibility for affordable housing.70 to evict the protected occupiers, the government is The proposal to eliminate cut-offs was being consid- required to relocate and rehabilitate them through ered in part because it would enable Mumbai to apply a designated Slum Rehabilitation Authority.63 As for funding through the centrally sponsored Rajeev a result, the homes of eligible residents cannot be Awaas Yojana scheme, which disallows cut-offs. demolished without their first being resettled. The details for the 1995 cut-off policy are also spelled The focus on expanding the 1995 cut-off rule, which out in the Development Control Regulations (DRC) is often tied to campaign promises of free housing promulgated under the Maharashtra Regional and for all, distracts from the critical need to develop Town Planning Act of 1966.64 Slum-dwellers who affordable housing with basic services. Nevertheless, can be considered “protected occupiers” under the given the complexity of solving the housing crisis in Slum Areas Act have significant land security and are Mumbai, one solution would be to disentangle water eligible for rehabilitation and also for basic services, and sanitation provision from the larger questions of like water. housing and land security.

66 • health and human rights volume 14, no. 2 December 2012 health and human rights

“Notification” beyond the 1995 cut-off Reading the Water Charges Rule together with the rule Slum Areas Act, it appears that the state government Although the 1995 cut-off rule looms large in currently has power to expand the number of slums Mumbai slum policy, a closer reading of the relevant eligible for water services by using its authority under laws and regulations suggests that access to water and Section 4 of the Slum Areas Act to “notify” an area sanitation could be expanded to slums created after to be a slum, and thereby make it eligible for water January 1, 1995. As noted above, the municipal water services under the Water Charges Rules. Indeed, the regulations known as the Water Charges Rules state very definition of slum indicates the need for water that connections will only be made to those slums and sanitation services. Here, the argument is that the that “have come into existence prior to 1-1-1995 state and municipal governments already have the or any other date separately notified by Government of authority to expand access to water services; they just Maharashtra in this behalf ” (emphasis added). To need to exercise their discretion. As a de facto mat- understand what other slums might be “separately ter, slum-dwellers who constructed dwellings after notified,” the municipal water regulations need to be January 1, 1995 or who lack proof of residency may interpreted in light of the Maharashtra Slum Areas be denied services under the current interpretation Act. of the law.77

Under the Slum Areas Act, the state government has While it may still be politically difficult to expand the the power to declare an area to be a slum by plac- number of “notified” slums, it is arguably easier from ing a notification in the Official Gazette.71 The Act an advocacy standpoint to convince state and munici- defines a slum as an area that lacks basic services, pal officials to exercise the power they already have, is unsanitary, squalid and overcrowded, is otherwise rather than change the law. An argument could also “unfit for human habitation,” or poses a “danger to be made that by failing to exercise this discretion, the the health, safety or convenience of the public in that government is in violation of its obligations to realize area.”72 Key criteria for determining whether a build- the human right to safe drinking water and sanitation. ing is considered unfit for human habitation include the absence of a water supply, lack of drainage and Slums located on central government sanitary conveniences, and/or a dearth of wastewater land disposal facilities.73

Once an area is “notified” as a slum, it then becomes In addition to the challenges posed by the 1995 cut- eligible for rehabilitation and improvement works off rule, slum-dwellers living on central government through a Slum Rehabilitation Scheme.74 Notably, land face additional hurdles in accessing basic ser- being eligible for rehabilitation does not make the vices like water. India is a federal country, and while slum-dwellers “protected occupiers” with the same states have the ability to frame their own laws and rights as those living in slums prior to the 1995 policies for slum upgrading, such laws do not apply cut-off rule.75 Since the 1995 cut-off rule went to land held by the central government. The central into effect, however, it is not clear if the govern- government of India still has large land holdings in ment has taken steps to “notify” any newer slums. cities like Mumbai because of its colonial past. As While the “notification” triggers eligibility for a full of 2006, approximately 5% of slums in Mumbai are Slum Rehabilitation Scheme under state law, actu- located on central government land; these slums are 78 ally undergoing formal slum rehabilitation does not in many ways the most marginalized. In a recent appear to be a prerequisite for access to water and article, Subbaraman et al. highlight the barriers that sanitation. A reasonable interpretation of the munici- residents in Kaula Bandar, a non-notified slum locat- pal Water Charges Act suggests that the mere desig- ed on central government land in Mumbai, face in nation of a slum as “notified” could create eligibility securing access to water and sanitation facilities.79 for water “stand post connections,” even without a full rehabilitation scheme. This could have significant Since the 1970s, central government agencies have implications, because as of 2008, approximately 45% been reluctant to allow any form of slum redevel- of slums in Maharashtra were considered to be “non- opment, including the extension of basic services, notified” in India’s National Sample Survey.76 to slums located on their land.80 In some instances, infrastructure upgrades require the land owner to

volume 14, no. 2 December 2012 health and human rights • 67 Murthy issue a “No Objection Certificate” to certify that the slum residents neither have access to adequate quan- land is not earmarked for other development plans, tities of safe, accessible, acceptable, and affordable and that it is possible to extend water and drainage water and sanitation services, nor have their rights to 81 facilities to the slum. However, central government housing and health been fully realized. From a human agencies, such as the airports and railways, as well as rights perspective, the current laws and regulations other organizations like the , are that prevent water and sanitation services from being generally unwilling to provide these certificates. The extended to slum-dwellers living in non-notified Mumbai Urban Transport Project was a unique and slums, including those on central government land, isolated example of central government cooperation in a slum relocation scheme. In that instance, the are problematic. The situation faced by slum-dwellers central government was planning a major infrastruc- in Mumbai reveals the conflict between domestic law ture project and agreed to relocate slum-dwellers and the ideals of human rights norms. As discussed living along the tracks as a result of pressure from above, India’s Supreme Court has broadly inter- the World Bank and civic organizations.82 As Burra preted the right to life provision of its constitution has observed, “There is a stalemate: politically, it is to include a right to water, sanitation, housing, and not possible to demolish the homes of thousands of other socioeconomic rights. However, in resolving slum dwellers who live on government land, but the cases, it has deferred to government policies promul- central government departments that own the land gated by the other branches of government, causing refuse to allow the inhabitants to receive tenure and India’s approach to be described as a “conditional basic services.”83 social rights model.”86 Despite the constraints of the political process and judicial interpretation, this sec- The central government’s reluctance to allow basic tion briefly considers whether any arguments could services to be provided on land owned by its agen- be made to reconcile domestic and human rights law, cies appears to contradict the goals of national and thereby expand access to water and sanitation redevelopment schemes, such as the Jawaharlal services in non-notified slums. Nehru National Urban Renewal Mission.84 Although states are responsible for slum and urban develop- With respect to the expansion of services to non- ment, the central government uses budget transfers notified slums that are not located on central govern- to states to promote national policies. Notably, the ment land, the 1995 cut-off rule is an arbitrary line Central Ministry of Urban Development and Poverty that arguably violates the principle of non-discrimi- Alleviation had issued a draft national slum develop- nation. This article suggests that the municipal water ment policy about a decade ago, which would have regulations and the Slum Areas Act could be inter- made it easier for slum dwellers to obtain land tenure preted in a way to avoid a conflict with the human or to be resettled where tenure was not feasible.85 right to safe drinking water and sanitation. To achieve However, the draft policy did not move forward this, the state government must exercise its authority because it was opposed by other central government to “notify” additional slums under the Slum Areas departments that own land on which many informal Act. Doing so would then expand eligibility for water settlements have been built. services under the municipal Water Charges Rules.

The central government’s reticence to facilitate the With respect to slums located on central government provision of basic services like water and sanitation land in Mumbai, it could be argued that by preventing for slums located on their agencies’ land deserves sub-national actors from extending basic services that scrutiny under international human rights law and are essential for life, the Indian central government is also under Indian constitutional law. in violation of its own constitutional obligations as well. By actively preventing the state of Maharashtra Human rights critique of government and/or the city of Mumbai from providing access to policies basic services such as water and sanitation services Despite various policy schemes, most of Mumbai’s to slum-dwellers living on land owned by central

68 • health and human rights volume 14, no. 2 December 2012 health and human rights government agencies, India is arguably in violation approach of the court. The invocation of a funda- of its obligations to respect its human rights obliga- mental right under the “right to life” provision of tions. Under human rights law, states have three key India’s Constitution may be sufficient to overcome obligations, often known as the “protect, respect, and the presumption that state law in India does not 87 fulfill” typology. Here, it could be argued that India apply to slums located on central government land. is not adhering to its duty under Article 2 to ensure Moreover, the central government’s increasing decen- that maximum available resources are being used tralization of urban development policies to the city to progressively realize the rights recognized in the and state level, which is often accomplished through ICESCR. In other words, the central government has various funding schemes, may also support an argu- not respected the human right to water and sanitation ment for increased central government deference to because it is interfering with existing schemes by the 88,89 state of Maharashtra and the city of Mumbai that state and municipal slum rehabilitation policy. would otherwise allow the upgrading of slums and the provision of services to move forward. Conclusion In order to realize the human right to water and While it could be asserted that the central govern- sanitation in the slums of Mumbai, the government ment has not fulfilled its obligations, an argument needs to separate questions of basic service provi- based on failure to respect is in many ways an eas- sion from underlying questions of land security. By ier one to make because it requires recognition of definition, slums have poor access to water and sani- a negative, rather than a positive, right. The case law also suggests that the courts are more likely to tation services and are considered unfit for human enforce negative rights. Of course, this is not to say habitation. Yet not all slums in Mumbai are equal. that the policies of the state of Maharashtra or the Slum dwellers living on state or municipal land who city of Mumbai are perfect, only that the central gov- meet the requirements of the 1995 cut-off rule have ernment’s actions appear to be at odds with India’s the greatest security, while those living in non-noti- human rights obligations. The situation presented fied slums on central government land generally have is in some ways an odd one, because under interna- the least. This in turn impacts their access to water tional law, nation-states are the duty-bearers. Yet in and sanitation services. this case, the actions of the sub-national actors, that is, the state of Maharashtra and the city of Mumbai, Non-notified slums on central government land are shed light on the feasibility of India’s ability to pro- in the worst position with respect to water and sanita- gressively realize human rights recognized in the tion. The central government’s reluctance to improve ICESCR. conditions of these slums contradicts the goals of their own poverty alleviation schemes. By often In light of this jurisprudence, a case brought under refusing to allow the state and municipal govern- India’s constitution asserting that the central govern- ments to provide basic services to slum communities ment has an obligation to recognize the slums located located on central government land, India is arguably on central government land and provide them with in violation of its obligations to progressively real- water and sanitation services would likely not go far. However, the court may be more open to an argu- ize the human right to water and sanitation under ment that the central government is interfering with international human rights law, as well as its obliga- a fundamental right that would otherwise be fulfilled tions under the right to life provisions of the Indian by a state government scheme, and often with funds constitution. In effect, realizing the human right to provided by a central government program. In other water and sanitation in Mumbai slums requires dis- words, by framing the issue as a negative right and entangling the provision of these vital basic services by providing deference to existing state policies, a from the more complex questions of land security challenge could be brought against the central gov- and land ownership. ernment that might survive the “conditional rights”

volume 14, no. 2 December 2012 health and human rights • 69 Murthy

Acknowledgements 8. C. Tacoli, G. McGanahan, and D. Satterthwaite, “Urbanization, poverty and inequity: Is rural- The author would like to thank Ramnath Subbaraman, urban migration a poverty problem, or part of Sundar Burra, Madhav Khosla and the anonymous the solution?” In G. Martine, G. McGranahan and peer reviewers for helpful feedback; Maya Mahin and R. Fernandes-Castilla (eds), The new global frontier: Philip Hamilton for their excellent research assis- Urbanization, poverty and environment in the 21st century tance; and the Health and Human Rights editors for the (London: Earthscan, 2008), p. 43. invitation to submit this article. 9. Ibid, p. 37. References 10. S. Kumar Karn and H. Harada, “Field survey on 1. F. Giovannetti, Guidance note on urban resettlement: water supply, sanitation and associated health impacts Mumbai urban transport project. Guidance note on urban in urban poor communities - A case from Mumbai resettlement (The World Bank and the Government City, India,” Water Science and Technology 46/11 (2002), of Maharashtra, January 2009), p. 4, Available at pp. 269-275. https://openknowledge.worldbank.org/bitstream/ handle/10986/3057/490000SR0white1T0Box03389 11. WHO/UNICEF Joint Monitoring Program for 391PUBLIC1.pdf?sequence=1; S. Burra, “Towards a Water Supply and Sanitation, Progress on Drinking pro-poor framework for slum upgrading in Mumbai, Water and Sanitation (2012), pp. 44–45. Available at India,” Environment and Urbanization 17/1 (2005), p. http://www.wssinfo.org/fileadmin/user_upload/ 68. resources/JMP-report-2012-en.pdf. 2. Justice H. Suresh, M. Kothari, K. Fernandes et al., 12. UN Human Rights Council, Report of the Bulldozing Rights: Report on the forced evictions and housing policies for the poor in Mumbai (Indian People’s Tribunal, Independent Expert on the Issue of Human Rights 2005), p. 37. Available at http://www.iptindia.org/ Obligations Related to Access to Safe Drinking wp-content/pdf/report/Bulldozing%20Rights%20 Water and Sanitation, C. de Albuquerque, UN Doc. Report%20On%20The-Forced-Evictions-And- No. A/65/254 (2010). Available at http://www2. Housing-Policies-For-The-Poor-In-Mumbai.pdf; PK ohchr.org/english/issues/water/iexpert/docs/ Das & Associates, Planners & Architects, Mumbai’s MDGReportA6524.pdf; N. Breslin, “Few Celebrating Slums Map-2 (August 2011). Available at http://www. MDG Success in Water,” Huffington Post (March 14, pkdas.com/published/Mumbai%27sSlumsMap- 2012). Available at http://www.huffingtonpost.com/ LandReservations.pdf. ned-breslin/clean-water-millennium-development- goal_b_1343292.html. 3. Ibid., p. 37; Burra (see note 1), p. 69.

4. Giovannetti (see note 1), p. 5. 13. R. Subbaraman, J. O’Brien, T. Shitole et al., “Off the map: The health and social implications of 5. S. Ashar, “Mumbai slum structures have grown being a non-notified slum in India,” Environment and 40% since 1995,” The Times of India (August 7, 2012). Urbanization 24/2 (2012), p. 649. Available at http://timesofindia.indiatimes.com/ city/mumbai/Mumbai-slum-structures-have-grown- 14. Ibid., pp. 2, 3, 7. 40-since-1995-State/articleshow/15382102.cms. 15. Karn and Harada (see note 10), p. 270. 6. Giovannetti (see note 1), p.5; UN-HABITAT, State of the World’s Cities 2006/2007 (2007, xxv, Available at http://www.unhabitat.org/documents/media_ 16. C. McFarlane, “Sanitation in Mumbai’s infor- centre/sowcr2006/SOWCR%205.pdf. mal settlements: State, ‘slum’, and infrastructure,” Environment and Planning A. 40/1 (2008), p. 26. 7. Burra (see note 1), p. 68. Accepted version of article available at http://dro.dur. ac.uk/3981/1/3981.pdf?DDD14+dgg4rjp+dul0jk.

70 • health and human rights volume 14, no. 2 December 2012 health and human rights

16/ 6 (2001), p.796. 17. R. Subbaraman, S. Shitole, K. Sawan, Failures in quality, quantity, and reliability of water provided through 32. P. S. Dhawan, S. S. Shah, J. F. Alvares et al., an informal distribution system in a slum in Mumbai, “Seroprevalence of hepatitis A virus in Mumbai, and India [Abstract 0S420.6]. Oral Presentation. 10th immunogenicity and safety of hepatitis A Vaccine,” International Conference on Urban Health. (Belo Indian Journal of Gastroenterology 17/1 (January 1998), Horizonte, Brazil, November 2, 2011). pp. 16–18; R. Aggarwal and S. Naik, “Epidemiology of hepatitis E: Current status,” Journal of Gastroenterology 18. Karn and Harada (see note 10), p. 270. and Hepatology 24/9 (2009), pp.1484–1493.

19. McFarlane (see note 16), p. 14. 33. K. Mukherjee, “Study of infective dermatoses among street children and adolescents in Mumbai,” 20. Ibid., p. 26. Indian Journal of Community Medicine 31/2 (2006), pp. 100-101. 21. Ibid., pp. 12–14. 34. UN Committee on Economic, Social and Cultural 22. The World Bank, The Mumbai Slum Sanitation Rights, General Comment No. 15, The Right to Program (2006), p. 3. Available at http://esa.un.org/ Water, (Article 11 and 12),UN Doc. E/C.12/2002/22 (2002). Available at http://www.unhchr.ch/tbs/doc. iys/docs/san_lib_docs/WSP-Mumbai.pdf. nsf/0/a5458d1d1bbd713fc1256cc400389e94/$FI LE/G0340229.pdf. 23. McFarlane (see note 16), pp. 14-15. 35. United Nations General Assembly Adopts 24. Ibid., pp. 13-15. Resolution Recognizing Access to Clean Water, Sanitation as Human Rights, by Recorded Vote of 25. A. Unger and L.W. Riley, “Slum Health: From 122 in Favour, None Against, 41 Abstentions, UN Understanding to Action,” PLoS Med 4/10 (2007), Doc. No. GA/10967 (July 28, 2010). Available p.1562; J. Hohmann, “Visions of social transforma- at http://www.un.org/News/Press/docs/2010/ tion and the invocation of human rights in Mumbai: ga10967.doc.htm. The struggle for the right to housing,” Yale Human Rights and Development Law Journal 13 (2010), p.140. 36. UN Human Rights Council, Human Rights and Access to Safe Drinking Water and Sanitation, UN 26. Giovannetti (see note 1), p. 5. Doc. No. A/HRC/Res/15/9 (2010). Available at http://ap.ohchr.org/documents/dpage_e. 27. Suresh et al. (see note 2), pp. 33, 37. aspx?si=A/HRC/RES/15/9.

28. Unger and Riley (see note 24), p.1562. 37. M. Khosla, “Making social rights condition- al: Lessons from India,” International Journal of 29. Ibid., pp. 1563. Constitutional Law 8/ 4 (2010), p. 743.

30. P. Masand, “Monsoon outbreak: Gastro, first 38. Ahmedabad Municipal Corporation vs. Nawab Khan cholera case,” The Times of India (August 6, 2011). Gulab Khan (1996), 11 S.C.C. 121. Available at http://articles.timesofindia.indiatimes. com/2011-08-06/mumbai/29857981_1_gastroen- 39. Subhash Kumar v. State of Bihar (1991), 1991 AIR teritis-cholera-severe-loose-motions. 420; Environmental Law Research Society, A primer on water law and policy in India (2012), p.3. Available at 31. V. Mukhija, “Enabling slum redevelopment in http://elrs.in/content/draft_primer.pdf. Mumbai: Policy paradox in practice,” Housing Studies

volume 14, no. 2 December 2012 health and human rights • 71 Murthy

40. For a discussion of some of the seminal cases, gov.in/English/PDF/E2012_PR3075.PDF. including Olga Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C. 180, see M. Khosla (see note 37), pp. 746–749; 56. R. Kulkami, The Public-Private tug-of-water water Hohmann (see note 24), pp.149–156. privatization in Mumbai: An analysis of the Water Distribution Improvement Project in the K-East 41. Khosla (see note 37), p.749. Ward (Centre for Civil Society, 2008). Available at http://ccs.in/ccsindia/downloads/intern- 42. Ahmedabad (see note 38); Khosla (see note 37), papers-08/Water-Privatisation-in-Mumbai-198.pdf; pp. 748–749. A. Jafri, World Bank attempt to privatise Mumbai’s water runs aground: Citizens reject report (January 43. Hohmann (see note 24), pp.165–167. 2007). Available at http://focusweb.org/index. php?q=node/1209. 44. C. de Albuquerque with V. Roaf, UN Special Rapporteur on the human right to safe drinking 57. Giovannetti (see note 1), p. 14. water and sanitation, On the right track good prac- tices in realising the rights to water and sanitation, p. 58. Burra (see note 1), p. 70; Suresh et al. (see note 58. Available at http://www.ohchr.org/Documents/ 2), p. 39. Issues/Water/BookonGoodPractices_en.pdf. 59. C. Lewis, “Slum Rehab Cut-off Now 2000,” The 45. Ibid. Times of India (June 18, 2009). Available at http:// articles.timesofindia.indiatimes.com/2009-06-18/ 46. This article does not attempt to address ques- mumbai/28157171_1_cut-off-date-slum-rehabilita- tions of differential access between slums and other tion-authority-winter-session. neighborhoods. Moreover, it does not discuss the challenges associated with constructing block toi- 60. Suresh et al. (see note 2), p. 47. lets or other sanitation facilities, such as through the Mumbai Slum Sanitation Program. See World Bank 61. PIB (see note 55). (see note 22); McFarlane (see note 16). 62. Slum Areas Act, sections 3X–3Z. 47. Subbaraman et al. (see note 17), p. 645. 63. Ibid., section 3Z(2). 48. Ibid., p. 37. 64. Development Control Rules with Amendments 49. Burra, (see note 1), p.69. as of 2012 (hereinafter “DCR”), Rule 33(10) and Appendix IV. Available at http://www.scribd.com/ 50. Ibid., p. 70. doc/94273648/Development-Control-Rules-DCR- With-amendments-as-of-2012. 51. Suresh et al. (see note 2). 65. Burra (see note 1), p. 88; Suresh et al. (see note 52. Mukhija (see note 31), p. 796. 2), pp. 8, 32.

53. Ibid., p. 795. 66. Ibid., pp. 8, 32-33, 57.

54. Burra (see note 1), p. 71; Mukhija (see note 31) 67. DCR (see note 64), Rule 33(9)(A), Rule 33(10)(A) pp. 796–801. and Appendix XXIV; DNA Correspondent, “Current dwellers of pre-1995 slums eligible for rehabilita- 55. Press Information Bureau of Government of tion: Govt,” Daily News & Analysis (January 3, 2012). Mumbai (hereinafter “PIB”), Audit Report No. 2 Available at http://www.dnaindia.com/mumbai/ (Civil) (2011), p.1. Available at http://pibmumbai. report_current-dwellers-of-pre-1995-slums-eligible-

72 • health and human rights volume 14, no. 2 December 2012 health and human rights

for-rehabilitation-govt_1632622. 77. Subbaraman et al. (see note 17), p. 645.

68. Janhit Manch and Bhagvanji v. The State of Maharashtra 78. P. K. Das, Slums improvement and development schemes (November 2006, Bombay High Court). Available at & policies: Talk at YUVA Centre (2005), p. 2. Available at http://www.indiankanoon.org/doc/129208/; Lewis http://www.pkdas.com/pdfs/Nationalconsultation- (see note 59). Slums.pdf; World Bank (see note 22), p.10.

69. R. Deshmukh, “Government nod for sale, trans- 79. Subbaraman et al. (see note 17). fer of slums prior to 2000,” MumbaiMirror.com (November 4, 2008). Available at http://www.mum- 80. Burra, (see note 1), p. 69; Suresh et al. (see note baimirror.com/article/2/200811042008110405305 2), pp. 38–40. 04837333d26/Govt-nod-for-sale-transfer-of-slums- prior-to-2000.html; “State moves SC to extend slum 81. World Bank (see note 22), p. 23. regularisation cut-off date,” The Economic Times (March 30, 2007). Available http://articles.economictimes. 82. S. Patel, C. d’ Cruz, and S. Burra, “Beyond evic- indiatimes.com/2007-03-30/news/28437631_1_ tions in a global city: People-managed resettlement in slums-regularisation-cut-off-date. Mumbai,” Environment and Urbanization 14/1 (2002), p.165. 70. Ashar (see note 5). 83. Burra (see note 1), p. 69. 71. Slum Areas Act (see note 62), section 4. The Water Charges Rules are promulgated under the 84. B. Debroy, “Rajiv Awas Yojana: Government Mumbai Municipal Corporation Act. In that act, the errs by not assessing similar projects like BSUP phrase “notify” is used in several different clauses, and IHSDP,” The Economic Times (January 16, 2012). and each time, it also refers to the process of placing Available at http://articles.economictimes.indiatimes. a publication the Official Gazette. com/2012-01-16/news/30631808_1_bsup-slum- development-rajiv-awas-yojana; Ministry of Urban 72. Ibid. Development, Jawaharlal Nehru National Urban Renewal Mission (2005) p. 11. Available at http:// 73. Government of Maharashtra, India, Maharashtra jnnurm.nic.in/wp-content/uploads/2011/01/ Slum Areas (Improvement, Clearance and UIGOverview.pdf. Redevelopment) Act, 1971, section 4. 85. Burra (see note 1), pp. 68-69. 74. Ibid., section 3. 86. Khosla (see note 37), p. 749. 75. In this interpretation of the Slum Areas Act, I disagree with Hohmann, who writes in her otherwise 87. UN Committee on Economic, Social and Cultural excellent article that “the Slum Areas Act protects Rights (see note 35), pp. 9–11. only those informal dwellers who have lived in their dwellings continuously since before the legislatively 88. Mukhija (see note 31), pp. 793-794. stipulated cut-off date. Hohmann (see note 24), p. 161. 89. National Institute of Urban Affairs, Impact of 76. Government of India, Some characteristics of urban the Constitution (74th Amendment) Act on the slums: Data from the 65th round of the national sample working of urban local bodies (2005). Available at survey 2008-2009 (2010), p. 12. Available at http:// http://www.niua.org/research_studies_2006.asp; M. www.indiaenvironmentportal.org.in/files/Some%20 Ramachandran, “Challenges of our cities,” Business characteristics%20of%20urban%20slums%202008- Standard India (July 22, 2012). Available at http:// 09.pdf. www.business-standard.com/india/news/m-ram- achandran-challengesour-cities/481047.

volume 14, no. 2 December 2012 health and human rights • 73